San Joaquin Farm Bureau Federation

By Vicky Boyd

For about two hours, San Joaquin Farm Bureau board members peppered two Army Corps of Engineer managers from Sacramento with questions about how they determine wetlands and enforce the Clean Water Act.

Although board members at times expressed frustration with the Corps' inconsistencies in enforcing the law, they said they also appreciated the two representatives' willingness to meet and talk with them in Stockton.

"We're not Corps bashing – we just want some answers to how we should approach things," said SJFB board member Dave Simpson, a Lodi winegrape grower. "We need some consistency."

Representing the Corps were Mike Nepstad, deputy chief of the Regulatory Division, and Bill Guthrie, chief of the California Delta Section, both from the Sacramento District.

The meeting was put together with the help of Rep. Jeff Denham's office (R-Turlock) to begin a conversation with the Corps, said Ken Vogel, SJFB second vice president and an almond and cherry grower near Linden.

"We want to build a dialogue, and that was one of the reasons – just to get to know them," Vogel said. "Animosity doesn't do any good. We want to be able to work with them."

At the same time, he said he hoped the Corps representatives came away with a better understanding of agriculture and farmers' concerns. "Hopefully, even though I'm sure they heard farmers are frustrated, they learned we're somebody who wants to work with them," Vogel said. David Strecker, SJFB first president, agreed.

"I was happy we had the meeting so we could have a discussion with somebody because there's been basically a lack of information," he said. "We started that process, and I'm happy we could open that line of communication. Hopefully, it will lead to getting more definitive answers as to how we should proceed moving forward."

From the meeting's onset, Farm Bureau members expressed angst about how the Clean Water Act was being enforced and pointed to the preliminary ruling in John Duarte's case as reason for their uneasiness.

In cases such as this, the Corps identifies the violation, and the Department of Justice litigates it if it goes to court.

For an area of ground to be classified as a wetland, it must have plants adapted to aquatic conditions or hydrophytic vegetation; hydric soils formed under flooding, ponding or saturation; and hydrology, Guthrie said. A wetland also is loosely defined as something that holds water for at least three consecutive weeks, a definition many in attendance said could apply to most of the state.

In addition, Corps representatives have to determine whether the area in question has "significant nexus" to a navigable waterway – wording in the Clean Water Act that has proven controversial.

The EPA roughly defines the term as covering tributaries to traditional navigable waters or interstate waters, wetlands adjacent to the above-mentioned waters, or waters that fall under the "other waters" category. The other waters group is further divided into those physically near jurisdictional waters and those that are not.

But Guthrie and Nepstad admitted the definitions require interpretation in many instances and they review situations on a case-by-case basis. "Here's what we have to live with in Northern California," said Forrest Sprague, a land-use and government relations consultant who had driven from Artois to have a face-to-face meeting with Corps representatives. "If there's a mud puddle near a depression in the soil next to a creek that makes it to the Sacramento River, that mud puddle is our jurisdiction."

SJFB Executive Director Bruce Blodgett asked about whether the Corps used five years as the general timeframe to define the "recapture provision," which addresses change of land use.

As a follow up, Simpson gave an example of board member Paul Sanguinetti, who had grown dryland oats for years. Because of changing markets, Sanguinetti decided to instead graze cattle on the same land and several years later wanted to plant walnuts on the same ground. Would he be subject to recapture even though the ground had been in agriculture and owned by the same family the entire time, Simpson asked. "Now all of a sudden, the Corps wants to regulate the change of land use," said Simpson, a retired Natural Resources Conservation Service conservationist. "It's not going into subdivisions – it's just a change in the crops."

Nepstad replied that was another situation the Corps would address on a case-by-case basis.

Sanguinetti, who farms row crops, walnuts and cattle near Stockton, said the Clean Water Act as originally passed in 1972 did what it was intended to do – clean up polluted streams and waterways. Since then, he said, the Corps had overstepped its boundaries and the intent of the law. Among his complaints was how it determined wetlands on a case-by-cases basis with no set of written standards.

"There are a lot of things that are not cut and dry, and there are too many personal feelings that go into some of these things," Sanguinetti said. "It's an opinion. Everybody has a different opinion, and that makes a problem."

Guthrie and Nepstad also repeated that they were there to answer questions. If any Farm Bureau member is unsure about whether ground was indeed a wetland, they are encouraged to call or emails before a project started.

"If you're in doubt, talk to us," Nepstad said. "We're not unreasonable people."

Sprague said he had tried to contact the Corps' Sacramento office multiple times in writing and by phone about two Northern California projects he suspected of violating the Clean Water Act. His attempts had largely gone unanswered.

One project involved the Glenn County Department of Public Works grading part of Walker Creek and removing sand and gravel. The streambed was never restored, and he said the modifications resulted in nearby flooding, stream erosion and sedimentation.

Sprague said the county project was only 50 miles from Duarte's field, yet was never cited for a violation.

"We don't know what to do up in the North state," he said. "There's a lack of consistency from one jurisdiction to another and a lack of consistency in enforcement between private sector and public sector projects."

Tom Orvis, Stanislaus County Farm Bureau governmental affairs director, attended the Stockton meeting after a similar one with the Corps in his county was canceled. Although Orvis said the meeting was a good first step, he said he wasn't holding his breath.

"Maybe it's a new regime in Sacramento – time will tell," he said. "You have to start somewhere, and this is it."

Vogel agreed. "Hopefully we can continue in some shape or form this dialogue with them."